December 21, 2009

Lawyer Wants All D.C. Superior Court Judges Recused in Stalking Case

The lawyer for a woman charged with stalking a D.C. Superior Court magistrate judge and breaking into her home does not think his client can get a fair shake unless a federal judge is tapped to preside over the case.

Nuevelle and Albert lived together at the judge’s home in Northwest Washington, according to Nuevelle’s previous counsel, D.C. solo practitioner A. Kevin Fahey. Albert, who is expected to testify, disputes that Nuevelle ever lived with her during their relationship. Prosecutors also allege that after the relationship ended Nuevelle broke into the judge’s home with the intent to stalk her.

Jones wants a federal district judge from D.C., Maryland or Virginia to preside over the case, which is set for trial in January before Superior Court Judge Russell Canan. At least one judge has already recused from hearing the case. Albert, a former federal prosecutor in D.C., has been a magistrate judge since August 2003. She is represented by Schertler & Onorato partner Robert Spagnoletti.

Jones declined to comment today about the motion. But he said in court papers it is “certainly more than plausible” that Albert has attended work-related meetings and social functions with other judges on the Superior Court bench.

“Even though the judge may not have a close relationship with every D.C. Superior Court judge there remains an appearance problem for any D.C. Superior Court judge to preside over this case,” Jones said. “Any current D.C. Superior Court judge may feel empathy toward (Albert) and it may unknowingly sway their judgment in making judicial rulings in this case.”

Jones said it will be “awkward” for Albert if conflicts arise. Those conflicts, he said, include the possibility that Nuevelle is acquitted or the possibility that Albert is upset with the sentence Nuevelle receives in the event she is convicted.

“This situation clearly presents an impartiality and fairness problem for any D.C. Superior Court judge to preside over this case,” Jones said. Click here for a copy of the motion.

In a separate motion (.pdf), Jones is seeking access to Albert’s cell phone and home computer. Jones said in a motion that he wants a forensic examination of the phone and computer to determine whether e-mails and text messages have been deleted or altered. Jones said his request is made in good faith and is not what he called a “fishing expedition.”

The prosecution, Jones said, is expected to produce at trial e-mail and text messages purportedly sent form Nuevelle to Albert. Jones said there’s a chain of custody problem: it’s unknown whether Albert provided the documents to the police or whether the police retrieved the information directly from Albert’s phone and computer.

“Obviously hard copies can easily be altered and without having a computer forensics expert inspect the cell phone and computer hard drive the defense will not be in a position to contest the data provided,” Jones said in court papers.